STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 99 CrS 73157
LYNWOOD RAY MESSER
Attorney General Roy Cooper, by Assistant Attorney General
Michelle B. McPherson, for the State.
Margaret Creasy Ciardella for defendant-appellant.
EAGLES, Chief Judge.
Defendant, Lynwood Ray Messer, appeals from judgment entered
in Cumberland County Superior Court upon a jury verdict convicting
him of one count of obtaining property by false pretenses.
The State's evidence tended to establish the following. During
July of 1999, Margaret Elizabeth Hooks (“Hooks”) told her employer,
James Jethwa (“Jethwa”), that she wanted to buy a vehicle for her
son. Jethwa told Hooks about someone he knew who could give her a
good deal on a repossessed vehicle and Jethwa subsequently gave
Hooks' phone number to defendant.
On 2 August 1999, defendant contacted Hooks by phone and
identified himself as the person that Jethwa had told her about.
Defendant said that he was in the business of both selling andrepossessing cars for “the bank” and that he had the option to bid
on the cars he repossessed. Hooks told defendant that she was
looking for a “fairly new” Ford or Chevrolet pickup truck with an
eight-cylinder engine. Defendant offered to sell her a recently
repossessed “1997 XLT Ford” that was “fully loaded” with a six
cylinder engine. Hooks declined defendant's offer, stating that she
needed a truck with an eight-cylinder engine. Defendant called
Hooks back approximately thirty minutes later and said he had
mistakenly described the truck as having only a six cylinder engine.
Defendant said he had checked the truck again and discovered that
it was indeed equipped with an eight cylinder engine. Defendant
again offered to sell the truck to Hooks and quoted her a purchase
price of $8,410. Defendant also said he was in the process of taking
the truck to “BB&T” and informed Hooks that if she wanted to buy the
truck, she would have to send him $4,000 before two o'clock that
afternoon. Defendant explained that “in order for him to get that
truck,” he had to deliver the money to the bank by 2:00 p.m.,
otherwise, “someone else could bid on that truck and [Hooks] could
lose the truck.”
Hooks asked defendant to see the truck. Defendant told Hooks
the truck was locked up at the bank's storage lot and the bank would
not allow her to enter their secure lot to see the truck. Defendant
repeatedly assured Hooks that the truck had no mechanical defects
and further stated that if Hooks was not completely satisfied with
the truck, he would give her a full refund. Hooks was reluctant to
agree without first seeing the truck. However, following a thirdconversation with defendant and defendant's repeated assurances,
Hooks agreed to buy the truck “sight unseen.” Defendant then
instructed Hooks to send him the money via “Western Union” and Hooks
complied.
The following day, Hooks called and spoke to defendant over the
phone. Defendant acknowledged receipt of the money and told Hooks
that the bank would hold the truck for 12 to 14 days, at which time
she would be required to “pay the balance” of the purchase price and
“the truck would be cleared.”
On 11 August 1999, defendant called Hooks and requested payment
of the balance of the purchase price. Once again, defendant told
Hooks that he needed the money before 2:00 p.m. and instructed Hooks
to send him the money via “Western Union.” Defendant promised to
deliver the truck to Hooks in “two days.” Hooks complied and
transferred $4,410 to defendant. Defendant, however, never delivered
the truck.
On 13 August 1999, Hooks called defendant and inquired about
the truck. Defendant told Hooks that the truck's electrical system
was in need of some repairs and that he had taken the truck to a
Ford dealership in Raleigh where the repairs would be covered under
the truck's warranty. Defendant asked Hooks to wait “a couple of
days” and assured her that he would deliver the truck as soon as the
repairs were complete. Several days passed with Hooks neither
hearing from nor seeing defendant, so Hooks contacted defendant
again and inquired about the truck. This time defendant said that
a part had to be ordered for the truck and that it had not yetarrived. Defendant told Hooks that the truck would be ready in about
a week and asked Hooks to be patient. Defendant assured Hooks that
“the truck would be there” after the repairs were complete. At the
end of that week, when Hooks had neither heard from defendant nor
seen the truck, Hooks called defendant again. During this
conversation, defendant told Hooks that the truck had required
additional repairs and asked for yet another week. When Hooks called
back at the end of that week, defendant gave another reason for the
delay. This prompted yet another call by Hooks and yet another
excuse by defendant, along with defendant's assurance that the truck
would be delivered when the repairs were complete. Hooks continued
calling defendant for the next three to four months; first on a
weekly basis and later on a daily basis. Hooks also spoke to
defendant in person at least four times. Each time, defendant
maintained that the truck was undergoing repairs in Raleigh and
would be delivered upon completion of the repairs. Ultimately,
defendant never produced the “1997 XLT Ford,” nor did defendant ever
tell Hooks that the truck had been redeemed by the debtor.
On 19 November 1999, Hooks met with defendant at his place of
business and demanded that he refund her money. Defendant offered
to give Hooks a “1997 F150 XL” that was on defendant's lot, in
partial satisfaction of the money he owed her. Hooks agreed on the
condition that defendant would provide her with the title to this
truck on 20 November 1999. Hooks drove the truck home but defendant
never delivered the title. Hooks contacted defendant several times
after 20 November 1999 to inquire into why she had not received thetitle. Much like before, defendant gave Hooks one reason after
another for his failure to deliver the title, along with the
assurance that she would have the title soon. However, defendant
never produced the title and the truck was repossessed while Hooks
was at work. Defendant never contacted Hooks again and Hooks never
received any part of the money she paid for the original truck. The
State's evidence also included the testimony of Michael Dean
Renfrow, who testified over defendant's objection, that defendant
approached him on or about 20 July 1998, representing himself as one
of the owners of a car lot called “Tarheel Traders.” Defendant, who
knew that Renfrow operated tow trucks, offered to sell Renfrow a “94
S super duty” tow truck for $5,812. Defendant said that he dealt
very closely with a Greensboro lending institution in the course of
his business. As a result, defendant knew that this lending
institution had recently repossessed the truck, which defendant said
he could acquire for Renfrow by paying only the amount that was owed
on the truck. Defendant quoted Renfrow a purchase price of $5,812.
Renfrow accepted defendant's offer and gave defendant $5,812 to
acquire the truck, which was to be delivered five days later.
Renfrow further testified that defendant failed to deliver the
truck as promised. After the fifth day, Renfrow went to defendant's
car lot and inquired about the truck. Defendant told Renfrow that
delivery had been delayed because there was a problem with the
truck's fuel injector. Defendant said he had taken the truck to the
“shop” to have the fuel injector repaired and that the repairs would
be complete in a “couple” of days. One week later, defendant stillhad not delivered the truck, so Renfrow went back to see defendant.
This time defendant said there was a problem with the truck's glow
plugs and that additional repairs were needed. Defendant assured
Renfrow that this would only delay delivery for a few more days. The
next time Renfrow inquired about the truck, defendant said he was
unable to deliver the truck because the lending institution was
being audited. Renfrow spoke to defendant almost daily for the next
month. Each time Renfrow inquired about the truck, defendant made
one excuse after another until defendant offered to refund Renfrow's
money. Defendant then gave Renfrow a personal check which was later
dishonored by the bank. Renfrow stated that as of the date of
defendant's trial, he had not received either the truck or any part
of his money.
At the close of the State's evidence, the trial court denied
defendant's motion to dismiss for insufficiency of the evidence.
Defendant presented no evidence and was convicted of obtaining
property by false pretenses. Defendant appeals.
Defendant first argues that the trial court erred when it
allowed the testimony of Michael Dean Renfrow pursuant to Rule
404(b) as evidence of defendant's intent, common plan or scheme, and
the absence of mistake. Specifically, defendant contends that the
trial court improperly concluded that the incidents were
sufficiently similar and not too remote in time to be admissible
under Rule 404(b). We disagree.
Rule 404(b) of the North Carolina Rules of Evidence provides
in pertinent part: Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident.
N.C. Gen. Stat. § 8C-1, Rule 404 (2001).
Determining the admissibility of evidence under N.C.R. Evid.
404(b) involves a three step analysis: First, the trial court must
determine whether the evidence is offered for a proper purpose under
the rule. State v. Bynum, 111 N.C. App. 845, 848, 433 S.E.2d 778,
780 (1993), disc. review denied, 335 N.C. 239, 439 S.E.2d 153
(1993). Next, the trial court must determine whether the evidence
is relevant, id., meaning that the evidence has a “tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” N.C.R. Evid. 401. Finally, the trial
court must determine “whether the incidents are sufficiently similar
and not too remote in time so as to be more probative than
prejudicial under . . . Rule 403.” State v. Schultz, 88 N.C. App.
197, 202, 362 S.E.2d 853, 857 (1987), aff'd per curiam, 322 N.C.
467, 368 S.E.2d 386 (1988). Whether to exclude evidence under Rule
403 is a matter within the sound discretion of the trial judge and
“abuse of that discretion will be found on appeal only if the ruling
is 'manifestly unsupported by reason or is so arbitrary it could not
have been the result of a reasoned decision.'” State v. White, 349
N.C. 535, 552, 508 S.E.2d 253, 264-65 (1998) (quoting State v.
Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied, 510U.S. 948, 126 L. Ed. 2d 341 (1993)), cert. denied, 527 U.S. 1026,
144 L. Ed. 2d 779 (1999).
Here, following voir dire, the trial court made detailed
findings of fact which support its conclusion that the evidence was
admissible under Rule 404(b). Specifically, the trial court found
that there were “striking similarities between the two alleged
offenses; all of which would be relevant to show intent, which is
a necessary element in this case, a common scheme or plan, or the
absence of mistake.” The trial court further found that “while 13
months is a lengthy period of time, . . . the striking similarities
between the case at trial and the testimony . . . outweigh[ed] the
13 month span.” Finally, the trial court concluded that “the
probative value particularly as to show the -- necessary intent,
common scheme and absence of mistake would outweigh any prejudicial
effect.”
We find no merit in defendant's argument that the incidents
were too remote in time and lacked sufficient similarity to be
relevant.
Under Rule 404(b) a prior act or crime is 'similar' if
there are 'some unusual facts present in both crimes or
particularly similar acts which would indicate that the
same person committed both.' However, it is not necessary
that the similarities between the two situations 'rise to
the level of the unique and bizarre.' Rather, the
similarities simply must tend to support a reasonable
inference that the same person committed both the earlier
and later acts.
State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-91
(1991)(citations omitted). Moreover, “remoteness in time generally
goes to the weight of the evidence rather than to itsadmissibility.” State v. Wilds, 133 N.C. App. 195, 202, 515 S.E.2d
466, 473 (1999). While “[r]emoteness in time may be significant when
the evidence of the prior crime is introduced to show that both
crimes arose out of a common scheme or plan . . . remoteness is less
significant when [as here] the prior conduct is used to show intent,
motive, knowledge, or lack of accident.” Id. (citation omitted).
Since the record before us clearly shows that the trial court's
decision was based on both the proper legal analysis and a reasoned
evaluation of the facts and circumstances of this case, we cannot
say the trial court abused its discretion by admitting the evidence
pursuant to Rule 404(b). Accordingly, this assignment of error is
overruled.
Defendant next argues that the trial court improperly denied
his motion to dismiss for insufficiency of the evidence.
Specifically, defendant contends that the State failed to produce
competent evidence to support an inference that defendant had the
requisite mens rea to sustain his conviction. We disagree.
“It is well established that a motion to dismiss should be
denied if there is substantial evidence of each essential element
of the crime and defendant is the perpetrator.” State v. Duncan,
136 N.C. App. 515, 518, 524 S.E.2d 808, 810 (2000). “The test of the
sufficiency of the evidence is whether a reasonable inference of
defendant's guilt can be drawn.” State v. Barfield, 127 N.C. App.
399, 401, 489 S.E.2d 905, 907 (1997). When ruling on a motion to
dismiss, “[t]he trial judge must consider the evidence in the light
most favorable to the State and the State is entitled to everyreasonable inference to be drawn from the evidence.” Duncan, 136
N.C. App. at 518, 524 S.E.2d at 811. “[C]ontradictions and
discrepancies are for the jury to resolve and do not warrant
dismissal.” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117
(1980).
The essential elements of the crime of obtaining property by
false pretenses are:
(1) a false representation of a subsisting fact or a
future fulfillment or event, (2) which is calculated and
intended to deceive, (3) which does in fact deceive, and
(4) by which one person obtains or attempts to obtain
value from another.
State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980). We
note that defendant does not challenge the sufficiency of the
evidence to establish elements one, three and four. Defendant's
argument is confined to the issue of whether the evidence was
sufficient to support a reasonable inference that he “had the intent
to defraud.” Therefore, our review is limited to the determination
of that issue. N.C. R. App. P. 28(a).
Rule 404(b) evidence is often “'critical to the establishment
of the truth as to a disputed issue, especially when that issue
involves the actor's state of mind and the only means of
ascertaining that mental state is by drawing inferences from
conduct.'” Stager, 329 N.C. at 305, 406 S.E.2d at 891 (citation
omitted). Inferences are based on the proposition that “the more
often a defendant performs a certain act, the less likely it is that
the defendant acted innocently. The recurrence or repetition of theact increases the likelihood of a mens rea or mind at fault.” Id.
(citation omitted).
In State v. Barfield, 127 N.C. App. 399, 489 S.E.2d 905 (1997),
this Court held that in the context of obtaining property by false
pretenses, reasonable inferences could be drawn from the testimony
of “other witnesses who contracted with defendant and obtained the
same results.” Id. at 402, 489 S.E.2d at 908.
In Barfield, the defendant promised to move a mobile home for
Jones and was paid $8,500 to do the work. Despite defendant's
repeated assurances that he would do the work, the work was never
commenced and defendant retained Jones' money. Other witnesses
testified that defendant also promised to move their houses. In each
instance, defendant failed to do the work but kept the money that
he had been paid in advance. Id. at 400, 489 S.E.2d at 907. This
Court held that defendant's motion to dismiss the charge of
obtaining property by false pretenses was properly denied because
“a reasonable inference [that] defendant falsely represented he
would move the house . . . [could be drawn] from the testimony of
[the] two other witnesses who contracted with defendant and obtained
the same results.” Id. at 402, 489 S.E.2d at 908. Moreover, where
the State's evidence supports a reasonable inference that the
defendant knew that his representations were false and were made in
order to induce the victim to confer some value on the defendant,
the evidence is sufficient to show that the defendant had the
requisite intent for purposes of withstanding a motion to dismiss.State v. Childers, 80 N.C. App. 236, 242, 341 S.E.2d 760, 764
(1986), disc. review denied, 317 N.C. 337, 346 S.E.2d 142 (1986).
Here, Renfrow testified that he purchased a vehicle from
defendant under circumstances that were “strikingly similar” to
those here. In both instances, defendant repeatedly assured the
buyers over extended periods of time that he would deliver the
vehicle once repairs were complete but never delivered the vehicle
and never returned the money to the would be purchaser. This
recurrence or repetition supports a reasonable inference that
defendant acted with the intent to deceive. In addition, Hooks
testified that defendant never told her that the original truck had
been redeemed by the debtor. Viewed in the light most favorable to
the State, this gives rise to an inference that defendant knew that
his representations were false and were made for the purpose of
inducing Hooks to pay money for the truck he knew he could not
deliver. Accordingly, we conclude that the evidence supports a
reasonable inference that defendant possessed the requisite state
of mind, i.e., the intent to deceive Hooks. Accordingly, the trial
court properly denied defendant's motion to dismiss.
For the foregoing reasons, we find that defendant received a
fair trial, free from prejudicial error.
No error.
Judges TYSON and THOMAS concur.
Report per Rule 30(e).
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